The U.S. Department of Justice’s (DOJ) indictment against the Tornado Cash developers, filed Wednesday, is indicative of the government’s seeming disdain for privacy according to Miller Whitehouse-Levine, CEO of the DeFi Education Fund, and Amanda Tuminelli, chief legal officer of the DeFi Education Fund. In the last century, the world has changed drastically, making almost every one of our daily activities far less private than ever before. With the enactment of the Bank Secrecy Act in 1970, financial institutions have to engage in record-keeping and reporting to assist the government in its efforts to prevent money laundering, and as a result, most of the information we provide to our banks can easily be viewed by the government.
John Doe subpoenas to financial institutions allow the government to obtain huge swaths of information (including purchase and spending history) without a court-ordered search warrant, without needing to reveal what crimes are being investigated or whether the personal information relates to a target, subject, or witness. This has given the government much more insight and powers of preemptive surveillance into our financial lives.
The government’s overly simplistic assumption that an individual’s desire to keep the details of their life private means they’re engaging in wrongdoing is not supported by the law or the reality of why privacy is so important to countless law-abiding citizens in their everyday lives. This is why our constitution proscribes the ability of the government to access otherwise private information unless there is a legitimate government interest or compelling need to intrude on Fourth Amendment rights.
The privacy debate is decades old and there will always be an inherent tension in balancing the individual’s right to privacy with the government’s legitimate need to cabin privacy rights in certain circumstances to prevent crime or serve an important government interest. New technologies like encrypted electronic communications or apps that enable anonymous payments complicate the matter, and call for new rules which require engagement with, curiosity, and education about the technology’s pitfalls and benefits.